Two lawsuits in the U.S. District Court for D.C. are challenging the District’s assault weapons ban. One challenge comes from a familiar antagonist to D.C.’s gun regulations; the other is brought by a national organization that has received millions in funding from a nonprofit run by a former undercover D.C. cop.
Dale Sutherland is the self-anointed “Undercover Pastor” and once a senior pastor at the McLean Bible Church where Republican elites have worshiped. The former narcotics officer is also behind the nonprofit Constitutional Defense Fund, which has bankrolled the Firearms Policy Coalition’s litigation challenging gun restrictions in the U.S. In July, FPC filed suit in D.C.
These challenges are among hundreds of lawsuits attempting to loosen firearms restrictions in D.C. and throughout the country since the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen. The court ruled in that case that gun laws must follow American “history and tradition,” and courts should no longer consider the government’s interest in boosting public safety. Legal experts have found this standard to be somewhat ambiguous, allowing for open interpretation and leading to an influx of challenges to gun laws.
Although FPC has seen some success, the Las Vegas-based organization recently lost its case challenging Maryland’s assault weapons ban. In an Aug. 6 ruling, a majority of a 15-judge panel for the Fourth Circuit Court of Appeals rejected FPC’s 2020 attempt to lift the state’s restrictions on these uniquely dangerous weapons.
Judge J. Harvie Wilkinson III, writing for the majority, cites the Supreme Court’s landmark 2008 decision in District of Columbia v. Heller, which struck down the District’s three-decade ban on handguns. In the Heller decision, the Supreme Court ruled that the Second Amendment protects the right to have firearms in a home for self-defense. The high court acknowledged in Heller that restrictions on certain types of weapons may be allowed, including that “weapons that are most useful in military service—M16 rifles and the like—may be banned.”
In the opinion for the Maryland case, Wilkinson writes that “the assault weapons at issue fall outside the ambit of protection offered by the Second Amendment because, in essence, they are military-style weapons designed for sustained combat operations that are ill-suited and disproportionate to the need for self defense.”
While the ban in Maryland was enacted in 2013, after a gunman used an AR-15-style weapon to kill 20 school children and six teachers in Sandy Hook, Connecticut, D.C.’s ban on assault weapons has been on the books since 2008. The Firearms Control Act of 2008, passed by the D.C. Council to comply with the Heller ruling, created a new set of firearms restrictions, including banning the possession of assault weapons; 14 states also enforce assault weapons bans of some kind.
Assault weapons are defined differently in each of these jurisdictions; the District’s ban specifies certain types of semiautomatic rifles, pistols, and shotguns with various enhancements, such as a detachable magazine, revolving cylinder, or silencer.
In addition to FPC’s lawsuit in D.C., a similar case was filed in June by the Second Amendment Institute, a D.C.-based nonprofit, and its founder and president, Tyler Yzaguirre, a self-proclaimed “gun-rights policy expert” and author.
In 2016, Yzaguirre founded SAI to “educate, activate, and empower individuals to be effectively mobilized for the Second Amendment.” His book, titled Gun Rights 101: Firing Back Against Gun Control’s Biggest Lies, was published in 2021.
Yzaguirre also wrote a series of editorials for the Washington Examiner, primarily focused on Second Amendment issues. These included pieces advocating to arm schoolteachers, as well as a tirade against Bumble’s policy against profile pictures depicting firearms.
Yzaguirre’s legal team includes George L. Lyon Jr., a D.C.-based attorney who was a co-plaintiff in the original Heller case, and was involved in subsequent challenges to District gun laws passed in the wake of Heller, including a previous attempt to challenge the assault weapons ban. Lyon is also a member of SAI’s board of directors.
“It’s a slap in the face to our Founding Fathers and Constitution that Washington, D.C. politicians blanket ban firearms for votes,” Yzaguirre says via email of the District’s ban.
Council Chair Phil Mendelson was among the councilmembers who introduced the legislation implementing the ban more than 15 years ago. Today, he expresses skepticism over those who interpret the Second Amendment to allow for unfettered access to firearms.
Mendelson notes that the Constitution’s framers did not have weapons with automatic capabilities in mind while defining the right to bear arms. In his view, many gun-rights advocates are more focused on their interpretation of the Second Amendment than they are with public safety.
“I think where it stands today is wacky,” Mendelson says. “The weapons that people have today are very, very different from the firearms that existed in the 1780s. It’s a little bit like comparing my EV Bolt to a horse and buggy.”
While no fatal mass shootings involving assault weapons have occurred in D.C. since the ban was enacted, the perpetrator of the 2022 Edmund Burke School shooting in Van Ness was found in possession of assault weapons and described himself as “an AR-15 aficionado.”
Advocates for firearms restrictions have echoed Mendelson’s sentiments, citing the 10-year implementation of the federal assault weapons ban passed by Congress in 1994. Under the federal ban, studies found significant decreases in mass shootings and assault weapons recoveries.
The District has not responded in court to the claims in Yzaguirre’s or FPC’s lawsuit.
Yzaguirre was also recently party to an unsuccessful suit against the Washington Metropolitan Area Transit Authority that attempted to reverse the ban on carrying handguns on Metro trains and buses. And he is involved in yet another ongoing lawsuit, filed in 2023, that challenges the District’s ban on large-capacity magazines.
SAI funds at least some of its legal battles with donations from members. On its website, the organization encourages donors to pledge a minimum of $49 to the “Second Amendment Institute’s Legal Defense War Chest” in order to receive a “2A Legal Defense Challenge coin.” Those who donate $79 will receive a signed copy of Yzaguirre’s book, and a $249 donation comes with an American flag that was flown over George Washington’s home, Mount Vernon.
In the assault weapons lawsuit, Yzaguirre filed for a preliminary injunction in July to prevent the District from continuing to enforce the ban that has been in place for 16 years. U.S. District Court Judge Amit Mehta decided to stay the case, as well as the lawsuit brought by FPC, until a circuit panel rules in a separate case regarding the District’s ban on large-capacity magazines.
FPC has filed similar cases across the country seeking to reverse restrictions on gun ownership, including in New York and Illinois, which have similar bans to the District. On July 30, FPC won one of these lawsuits, when the presiding judge ruled that New Jersey’s ban on AR-15-style rifles is unconstitutional.
In his decision, U.S. District Court Judge Peter Sheridan suggested that legislators should do more to mitigate the dangers posed by firearms.
“It is hard to accept the Supreme Court’s pronouncements that certain firearms policy choices are ‘off the table’ when frequently, radical individuals possess and use these same firearms for evil purposes,” Sheridan writes.
A recent investigation published by the Trace and Mother Jones revealed that efforts by FPC and its affiliate, Firearms Policy Foundation, are funded in part by grants from Sutherland’s Constitutional Defense Fund. The gun-rights nonprofit reported spending more than $12 million to pay Cooper & Kirk, a D.C.-based law firm involved in many of FPC’s lawsuits, between 2020 and 2022. CDF has also awarded funds to Georgetown professor William English, whose questionable research has been used in FPC’s work throughout the country, including in the Bruen case. Justice Samuel Alito cited English’s survey in his concurring opinion.
Most of CDF’s funds were received through a conservative dark money fund called Donors Trust—obscuring the identities of its donors. Efforts to reach Sutherland were unsuccessful.
Despite the ongoing challenges to assault weapons bans across the country, the Supreme Court announced in early July that it would not weigh in on challenges to these restrictions.
In April, however, the Supreme Court decided to hear a case brought by FPC in Texas that will determine whether the Bureau of Alcohol, Tobacco, Firearms and Explosives is able to regulate 3D-printed “ghost guns” as deadly weapons.
Ghost guns were briefly prohibited in D.C. after the Council passed emergency legislation in 2020 banning their registration and possession. Lyon yet again represented Dick Heller (of the Heller case) in a 2021 lawsuit challenging the ban. The suit influenced the Council to act to narrow the ban’s scope.
A 2023 report published by the ATF found that the ghost gun involvement in crime is an “emerging issue” as the number of ghost gun recoveries increased by 1,000 percent between 2016 and 2021.
George Washington University law professor Robert Cottrol tells City Paper that the District’s ban on assault weapons outlaws them “not on the [basis] that they are automatic weapons in some ways, but that these particular semiautomatic weapons have represented particular danger that allows the D.C. government to outlaw them.”
Cottrol says that the recent surge in firearms-related cases stem from a fundamental originalist belief that the Second Amendment unconditionally protects the right of American citizens to keep and bear arms.
The decision in Heller, Cottrol says, determined that sweeping firearms restrictions were unconstitutional on the basis of originalism, and the ensuing decisions in cases like Garland v. Cargill, in which the Supreme Court determined the legality of bump stocks, serve to narrow legislators’ ability to restrict firearm ownership. Bump stocks are attachments to semiautomatic weapons that enable them to fire with the capabilities of a fully automatic weapon.